Like
Judge Parker in Emerson,
Judge Magill in Silveira
objects to the unnecessary arguments. If the 5th Circuit
has politicized the judiciary then the 9th Circuit has
offered a counter politicization. The substantive debate
and discussion have not been taken up in the political
arena, in the news media, or among the falsely polarized
advocates so the burden of responsibility might just
as well fall on the judiciary.

February 18, 2003. Nordyke v. King ruling

US v. Emerson
provided a very great but sadly missed
opportunity to engage in public debate and to
elevate and expand public discourse on what is really
at stake in the struggle over firearms regulations. We did
not get that with Emerson,
Silveira,
Nordyke,
or Seegars. There might be a
chance with
Parker
Poor Emerson did not fare well. He
wins and he loses. He has his precious individual right.
He can believe in it. He can build an altar and bow
down and worship it, but it means nothing as a matter
of law. Emerson was sent back to the District Court
for trial and was enventually convicted.

What we did get was Judges Garwood and DeMoss going out of
their way to provide many pages of Second Amendment
obiter dicta not related to the outcome of the case.
The dicta are a gratuitous political sop to the gun lobby
and the Libertarian Right which they will use to great benefit.
There will be many more additions to the long lists of
quotes that add up
to nothing of legal or constitutional consequence.
We know that the Senate Judiciary Committee report of January,
1982,
"The Right to Keep and Bear Arms,"
which has been used with great demagogic effect was written
by NRA operatives. We can suspect that
Attorney General Ashcroft's May 17, 2001, letter
to the NRA was written with the collusion of NRA operatives.
It did coincide with the NRA convention.
Ashcroft's 2004 memorandum was probably also written by NRA
operatives,
http://www.usdoj.gov/olc/secondamendment2.htm.
Can we now suspect
that the obiter dicta in Emerson were written
with the collusion of NRA operatives? They probably weren't but
that does not matter. The demagogic effect is the same.
What the dicta prove is the pervasiveness of right
wing anti-government ideologies and the failure of everyone
else to address them. Emerson's appeal to the Fifth Circuit
en banc that is, all the judges on the Fifth
Circuit was rejected. The Fifth Circuit could have
striken Garwood's personal opinion out of the record as
out of order and disruptive to other cases in the Fifth
Circuit. Emerson's appeal
appeal to the Supreme Court was denied.

The gun controllers marginalized the significance of Emerson.
They thought this was a legal and constitutional no-brainer. So far they
have lost the demagogic contest. The news organs and the politicians
almost completely ignored it.

Judge Garwood’s opinion, with no force in law, will serve
the same demagogic public relations purpose as the Senate
Judiciary Committee report,the Ashcroft letter, and Ashcroft memorandum.
The opinion has already been proclaim under one title as,
"A Big Win for the Insurrectionists." Are federal
judges who are under oath of public office to preserve protect
and defend the Constitution against all enemies foreign and
domestic in the business of giving "wins" to insurrectionists?
It is still nevertheless true, as we pointed out in
our amicus brief,
that James Madison, Patrick Henry, and Joseph Story
were not describing the civil rights of private individuals
to be armed outside of the law. We take this up again in
our amicus brief in Parker.
It is abundantly clear from the
history of the early Republic that the militia clauses
of the Constitution, the Second Amendment and the Militia Act of 1792
(our
Appendix C) were about the
disposition of military force. None of
the sources of the
long lists of quotes which abound in gun
lobby pseudoscholarship, on the internet and in Judge Garwood’s
opinion objected to the inventory requirement of the Militia
Act. Absolutely no one between 1792 and 1903 (when the Militia
Act was replaced by the Dick Act which was an act of military
reorganization) expressed any objection to
the inventory requirement. Whatever individual right there
was was not a right to be armed outside of the knowledge and
reach of government.

Private individuals can have an individual right to gun
ownership right up to the point of a right to individual
sovereignty. The right to individual sovereignty expressed
as the "armed populace at large," the right to be armed outside
of any legally authorized or permitted purpose (our
Appendix H), is what the
NRA argues for explicitly in briefs its has filed in other
cases in federal court
(.../nraperp.html,
.../pzpet.html.../nrareno3.html). There
can be no right secured by government to individual sovereignty.
Individual sovereigns by definition do not consent to be
governed, do not give "just powers" to government, do not
"surrender up the executive power of the law of Nature," do
not recognize a higher authority that gives binding law.
They make a treaty not a government. The Fifth Circuit
would have needed to look no farther than our amicus
brief to find this adequately stated. There is no indication
that the judges gave any serious attention to the amicus briefs
 for or against.

Noah Webster, a prominent federalist, defined "bear" as "to carry" or "to
wear. . . as, to bear a sword, a badge, a name; to bear arms in a coat." Webster, An American Dictionary of the English Language (1828). "To bear arms in a coat" typically meant to carry a pistol in a coat for self defense.

Arms in Webster’s definitions include "war," "hostilities," and "the ensigns armorial of a family." A "stand of arms" was the unit of the day of a soldier’s ordinary military equipment. One definition of coat is "that on which ensigns armorial are portrayed; usually called a coat of arms." Properly read the words would convey: "bear arms in a coat [of arms]," not walk the streets with a concealed weapon in one’s coat pocket.
See full text of Webster's definitions at:http://www.potowmack.org/thequotes.html#noah
Judge Garwood nevertheless gives his implicit endorsement to this absurdity. One would hope that federal judges have some concern that they not make themselves into laughing stocks. The Fifth Circuit en banc did not remove this foolishness from the record. The endorsement will be used to great demagogic effect. There is nothing else in Judge Garwood’s personal sentiments or Stephen Halbrook’s compulsive ideological formulations that are any more credibile. More on Halbrook at:http://www.potowmack.org/emerarg.html#halbrook, andhttp://www.potowmack.org/emerappi.html#halbrook.

A real issue becomes, what kind of "Patrons of Anarchy" (see
Ashcroft letter, August 31) have been
placed on the federal judiciary in past twenty years who do
not know the difference between civil society and anarchy? That will
not be taken up either nor will the outrageous politicization
of the federal judiciary to support a preposterous ideological
agenda.

Chief Jusice Rehnquist wrote in The Supreme Court (1987):

From the time of John Marshall, the Court has said that the authority to declare an act of Congress unconstitutional is the most awesome responsibility that any court could possess, and the authrority to do so must be exercised with extraordinary circumspection. The first canon violated by the Dred Scott decision is based on this view, and it holds that the Court will never decide a question of constitutional law unless the decision of that case is absolutely essential to dispose of the case before it.

The terms of gun ownership are not a tempest in culture war teacup between gun lovers and gun haters. They involve the most fundamental political issues of law, government and citizenship. These are the issues that are at stake in US v. Emerson.

Amici Curiae In Support of the Prosecution (The Federal District Attorney's Office)

John Kenneth Rowland, "Resetting the Terms of Debate on the Second Amendment: New Light on the Original Meaning of the Phrase "to Bear Arms" Based on 300 Historical Uses of the Term in a Military Context in Early America, 1618-1791." Original historical research and analysis prepared for the Fifth Circuit in Emerson. Excerpts from Rowland's previously unpublished PhD dissertation on the right to keep and bear arms is provide at
.../1197row.html. (79K)

"The Return of Militia," inventory of militia resources including privately owned weapons authorized by the Militia Act of 1792, Appendix C. We did not find the inventory until after the amicus brief was filed. The point was made that the President as commander and chief has a right and a need to know who the militiamen are and what the militia resources are as a national resource. In the eighteenth century the public had a claim on privately owned weapons for public purposes.

Sketches of American Policy, Noah Webster, 1785. Influential pamphlet widely circulated before the Constitution Convention in 1787. Webster characterized the "people at large" as anarchy. See
the NRA's amicus brief in Perpich for the "populace at large" as the militia.(115K)

"Sentiments on a Peace Establishment", George Washington, 1783. The context of the time on the militia was military organization. No "personal right" was mentioned or any support given to the NRA's "armed populace at large" fantasy. See the NRA in Perpich below. (43K)

Appendix W

Houston v. Moore (1820). Associate Justice Story's expresses himself on the "palladium of the liberties of a republic" where it counts.

The immediate issue in this case was federal and state jurisdiction to try noncompliance with militia orders. The context provides much enlightenment on the militia institution. Militia duty was conscript duty more closely resembling the conscript duty of the Selective Service Acts of the twentieth century. There was no mention of a "personal right" to be armed outside of lawful authority or any support given to the NRA's "armed populace at large" fantasy. See the NRA in Perpich below.Part 1: Statement of the case; arguments of plaintiff and defendant. 22K.Part 2: Opinion of Justice Bushrod Washington. 37K.Part 3: Opinion of Justice Johnson. 28K.Part 4: Opinion of Justice Story. 52K.

Appendix X

Martin v. Mott (1827). Associate Justice Story's expresses himself on the "palladium of the liberties of a republic" where it counts. 30K.

In
Perpich v. Department of Defense,
The Washington Legal Foundation, including as amici a short list of rightwing congressional gun lobby minions (Helms and Hyde inter allia), argued for the authority of the Department of Defense to command the National Guard on a foreign mission over the objections of state governors. (56K)

The Firearms Civil Rights Legal Defense Fund's amicus in
Perpich v. Department of Defense.
The NRA argued that the militia is the "armed populace at large" separate from the National Guard. It was a nice try, but, while upholding the authority of the Federal Government over the National Guard, the Supreme Court did not give any credibility to the NRA's armed populace-at-large fantasy. See
Noah Webster on the "people at large." (46K)

Defense attorneys are obligated to represent their clients not promote a childish political fantasy. It appears from the defense brief that the defense has learned from the amicus briefs in support of the prosecution that the Second Amendment constitutional argument does not hold up. Rather than rely on the Second Amendment, the defense wants to direct the court's attention toward the restraining order and the ignorance-of-the-law excuse. While repeating some conventional Second Amendment specious points, the defense makes no attempt to refute the historical, constitutional and political theory arguments on the prosecution side. The Fifth Circuit may still find opportunity to address the constitutional arguments and tell some people they cannot have their childish political fantasy. But, at this point it is not certain that anything substantive will come out of the Emerson case. One valuable outcome will be the long list below of amici in support of the defense. We can hope they have made their best arguments. One thing for certain is that we will not see anything about it in what the NRA calls "the rabidly, antigun"
Washington Post. Public enlightenment is not what they do. The function of the Washington Post, representative of the news media in general, in the present political environment is to keep public discourse and public consciousness very narrowly confined. We can't have the people becoming informed about their political existence. We can't force genuine political leadership on members of Congress. The armed populace fantasy is well served. In the experience of the Potowmack Institute
NPR's Diane Rehm ranks second only to the Washington Post in dereliction.

Regardless of the dereliction of the news media, the Emerson case is still an opportunity to expand public debate out of the mindless rantings of the message boards that abound on the internet into meaningful public discourse in the 2000 election season. This is where we can get serious and raise the issues in public with politicians on the campaign trail that are raised in the
Potowmack Institute's amicus brief and the other amici and provide some enlightenment on the contours of citizenship: Are gun owners citizens under law and government or are they individual sovereigns, laws unto themselves, in the State of Nature which is the state of anarchy? Or phrased another way, Is the Constitution a frame of government with "just powers" that derive from the consent of the governed or a treaty among sovereign individual who give no more that word of honor and promise of good faith? Can politicians explain the difference? Can they explain what the consent to be governed imposes on private individual citizens? These are not new issues. If at first we don't succeed, we read the instruction. If we do not raise substantive issues, the outcome of Emerson will likely go by unnoticed and unremarked upon. Gun lobby resentment will go underground and we will return to the business as usual routine of cynical, small-mind, obstructionist politics. The Washington Post will print again the gun lobby's version of Federalist Paper No. 46. Diane Rehm will do another program on smart guns. Handgun Control will go back to suing the gun manufacturers and the Clinton Administration will go back to promoting gun safety. The establishment, centrist foundation will spend another few million collecting public health statistics.

David Kopel is quoted in the Potowmack Institute's amicus, page 12 and
Appendix D: "The tools of political dissent should be privately owned and unregistered." This is an unequivocal statement of political consciousness and agenda to maintain a balance of power between a privately armed populace and any and all government. The Potowmack Institute (in its previous incarnation as the Firearms Policy Journal) told Kopel in 1996 that he had
"much to explain." He still has much to explain. Kopel provides a list of the state constitutions' bills of rights with comments which only prove the point in the
Potowmack Institute amicus that there was much confusion almost from the beginning of the Republic about what the right to arms was all about. The confusion increased as the militia institution died. The first step in clearing up the confusion is to get the "rabidly anti-gun"
Washington Post to print in full context what James Madison was really describing in Federalist Paper No. 46 and make an issue of what is the real agenda of people who have to be blatantly dishonest to make their case. See
Appendix I.
The amici in support of Emerson do not have to worry that the Washington Post will commit public enlightenment. Kopel goes on to list court cases about gun rights with very little argument or comment.

In
Appendix A historian John Kenneth Rowland analyzes 300 uses of "to bear arms" in official documents of the 17th and 18th centuries ending his analysis intentionally in 1791 to get at the original public consciousness and avoid the later confusions that emerged and Kopel exploits to further a very contemporary agenda.

Kopel ends his brief:

Courts in the above states have also upheld other, reasonable gun control laws. As the state experience shows, judicial protection of the right to arms does not lead to anarchy, or to any of the other ridiculous scenarios posited by appellant's amici.

CONCLUSION

The judgment of the District Court should be affirmed.

Respectfully submitted,
David B. Kopel
Counsel for Amicus Curiae

Kopel's Independence Institute describes itself "as a public policy research organization dedicated to the principles of the Declaration of Independence." The Declaration of Independence was a charter for revolution. It asserted the natural right "to alter or to abolish" one government and then "to institute new government." Kopel might have taken the opportunity to explain something about the new government and what it imposes by way of the rule of law on individual citizens. Are gun owners who possess an individual right citizens under law and government or
individual sovereigns,
laws unto themselves, in the State of Nature, which is the state of anarchy? We might have learned something about whether or not they consent to be governed, give "just powers" to government, "surrender up the Executive Power of the law of Nature", and give "a right to the Commonwealth to imploy" their "force for the Execution of the Judgments of the Commonwealth" whenever "called to it". Quitting the State of Nature and entering into political community is the "ridiculous scenario" we need to have some clarification on before we start talking about individual civil rights. There seems to be much difficulty grasping where the logic of the armed populace fantasy leads.

The NRA gives much convoluted legal support to the basic arguments of the District Court. What is important here is that when the defense attorneys for Emerson saw the arguments against the Second Amendment defense they apparently realized that the Second Amendment was not any help to their client. Emerson will very likely be decided on other issues. When it really gets down to it the armed populace fantasy that has been formulated in the law journals over the past twenty years is not a defense that any lawyer will want to argue in court. We can hope that the Fifth Circuit will still find some excuse to take up the Second Amendment and provide some enlightenment. How the defense and the court treats this case is a news story. The NRA can find relief that the outcome will not be reported in the "rabidly, anti-gun"
Washington Post. The NRA will still be able to engage in its business as usual of small-minded, cynical, obstructionist politics to have its armed populace fantasy by defeating legislation.

The Gun Owners Foundation is part of Gun Owners of America. The Gun Owners Foundation provides only 1500 words of text and devotes the rest of its brief to listing the great volume of pseudoscholarship that has been produced in recent years. We can hope the court will find an opportunity to examine the pseudoscholarship for its true belief that finds the meaning it seeks. See Appendix I.

Submitted to the court by Stephen P. Halbrook. Halbrook did not find the opportunity to explain how constitutional government fits in between authoritarian absolutism and his "libertarian republicans."

The Texas State Rifle Association is concerned with unconstitutional intrusions of federal regulation into areas of state jurisdiction through misguided gun control laws. It has no appreciation of the implications of the circumstance that the Second Amendment and the early militia acts were about military organization not civil regulation and personal rights.